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A new Google books settlement goes to judge tonight

Google and book authors and publishers have until 11:59 EST tonight to submit a revised settlement to their legal dispute over digital book rights. It's likely they'll file their comments very close to the deadline.

The revisions will be submitted to a federal court conducting a fairness review of the deal. And the move will mark the latest step in a near four-year battle that has raised new questions about online copyright, e-commerce competition, and the future of publishing and libraries.

After comments are submitted, the Justice Department will weigh in with their views. Critics of the deal, including the heirs of John Steinbeck and e-commerce firms like Amazon, will likely protest the deal if not significantly revised, they say. The U.S. District Court of the Southern District of New York is holding a fairness hearing of the settlement to determine if it is harmful to consumers and competitors.

What's being revised is a $125 million settlement struck in October 2008 between Google and plaintiffs in a class action suit that included The Authors Guild and the Association of American Publishers. The settlement could allow the search giant to create a massive online digital library with rights to scan and search millions of titles. So far, Google Books has scanned 10 million titles.

Critics, including the Justice Department, said the deal could unfairly advantage Google and possibly lead to price-gouging because Google would have greater control over the titles. Justice, which has been investigating the deal, said last September it wouldn't approve of it as it currently stands and ordered Google and parties in the settlement to rewrite their deal.

Specifically, Justice suggested limiting the provisions for future licensing, a part of the settlement that some critics said would give Google dominant power over the licensing of digital titles. The agency also recommended adding more protections for the holders of rights to little-known books and eliminating the joint pricing deal between publishers and authors.

Justice said that "whatever the settlement's ultimate scope," it should "provide some mechanism by which Google's competitors can gain comparable access."

Gary Reback of the Open Book Alliance, said in an interview last Friday that unless significantly restructured, the settlement could unfairly edge out competitors in online books and lead to higher prices for consumers. They warned that the project could lead Google to leverage its dominance in online search to favor its book search application over competitors. The Open Book Alliance includes competitors Microsoft, Yahoo and Amazon.

Google sees the project a business and social boon. In an Oct. 9, 2009 op-ed in the New York Times, Google co-founder Sergey Brin wrote that the agreement "aims to make millions of out-of-print but in-copyright books available either for a fee or for free with ad support, with the majority of the revenue flowing back to the rights holders, be they authors or publishers."

He writes: "The famous library at Alexandria burned three times, in 48 B.C., A.D. 273 and A.D. 640, as did the Library of Congress, where a fire in 1851 destroyed two-thirds of the collection.

I hope such destruction never happens again, but history would suggest otherwise. More important, even if our cultural heritage stays intact in the world’s foremost libraries, it is effectively lost if no one can access it easily. "

Google's Sergey Brin of course conveniently fails to note that if MORE content providers -- not just Google -- have copies of books, they are even less likely to be lost forever. (Cecilia Kang, whose blog is sponsored by Google/Doubleclick ads, likewise does not note this in her article. She just quotes Brin uncritically.)

Nor does the article mention that Google's current wholesale scanning of entire libraries' collections of book without the permission of authors is blatant, massive copyright infringement.